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In the most significant analysis of the fair use doctrine in academia to be conducted in decades, Georgia Senior U.S. District Judge Orinda Evans issued a decision on Friday drawing the first bright line reading of the fair use doctrine.  According to her opinion, for electronic reserves and digital content management, the use of 10% of a work that is less than 10 chapters, or one chapter of a work that is over 10 chapters, now falls under the protection of the fair use umbrella.

Back in 2008, Oxford University Press, Cambridge University Press, and Sage Publications filed a complaint against Georgia State University (GSU), alleging that GSU committed massive copyright violations when it permitted the download of unlicensed book excerpts and the repackaging of this information for use in electronic course materials.  The electronically distributed works at issue were copyrighted, and according to the publishing houses, GSU engaged in conduct that exceeded the scope of fair use protection in violation of U.S. copyright laws.

In her approximately 350 page decision, Judge Evans sided heavily with GSU, rejecting 69 of the 74 copyright claims brought by the three publishing giants.  The complaint contained 99 instances of alleged infringements.  Judge Evans found that only five constituted infringement.  However, it is important to note that only 75 claims made it to trial.  And of these 75, only 48 received a fair use analysis.

This watershed decision will have an immediate effect on the electronic reserve policies developed by libraries and universities, and will also impact the degree of copyright protection that publishers can now expect in academia.  The decision may also affect digital sharing lawsuits to come.

For the five instances of infringement, the level of injunctive relief remains to be decided.  Judge Evans has asked the publishing houses to draft a potential injunction.  GSU will be permitted to object to any drafts put forward.  Many speculate that an appeal is to come.  In light of this decision, it will be interesting to see how the fair use doctrine continues to evolve.

<em>The case is Cambridge University Press et al. v. Mark P. Becker et al., case number 1:08-cv-01425, in the U.S. District Court for the Northern District of Georgia.</em>

A Bright Line to Follow for Fair Use in the Digital World